Model of Mediation for Association-to-Association Disputes

The chief staff executive or designee, upon receiving a request for an association-to-association mediation, will advise all parties of the following:

• Voluntary Process: Mediating disputes between associations is a voluntary process. In other words, for mediation to occur, both associations[U1] , also referred to as parties, must mutually agree to mediate their dispute under the association mediation process. Conversely, if one or more associations do not agree, the association-to-association mediation process cannot move forward. Because association-to-association disputes are voluntary, associations decide to enter the mediation process. Parties can leave the mediation process at any time.

Note: Associations that have differences with other associations that do not involve an alleged violation of NAR policy must attempt to resolve their differences with one another through mediation before filing a lawsuit.

• By Resolution or Majority Vote of Directors: suggested best practice is that directors identify who will be the association spokesperson and participant at the mediation. You may use the following suggested language to initiate the process: The board of directors met and by resolution adopted to engage a mediator. We identified XYZ as our spokesperson at the mediation.
• Parties decide the outcome of their dispute.
• If the parties (i.e. associations) agree to the process, the matter will be referred to the Mediation Officer[U2] .
• Disputes Contemplated: Please note the disputes provided are not covered under NAR’s Errors and Omissions insurance policy. Associations selecting this mediation process must seek alternative insurance coverage. The types of association-to-association disputes that fall within the voluntary mediation process are:

1. Advocacy and territorial jurisdiction disputes (Territorial Jurisdiction Policy)
2. Contractual issues between associations, specifically relating to an association’s performance and/or overlapping services offered by local associations and their respective state association.
3. MLS-related disputes related to breach of non-mandatory policies adopted by associations.
4. Knowingly or recklessly making false or misleading statements about other associations’ programs, products or services, and/or allegations of violation of NAR mandatory policies.

If a party’s concerns about entering mediation stem from a lack of familiarity with the process, an explanation of mediation in familiar terms would be in order. The advantages of mediation should be stressed, including the fact that the process is private; that the parties have complete control over the outcome; and that the mediator is an experienced facilitator.

If a party’s reluctance about entering the mediation process stems from concerns about the behavior of the other party, offer to address the issue before the mediation if appropriate or advise the party that the mediation officer will control the process. For example, if one party suggests that another party will never want to settle the matter, the individual scheduling the mediation could offer to speak to the other side about entering the process (but not about specific settlement). If the reluctant party is concerned about another party’s behavior during the proposed mediation, the individual scheduling the matter could advise that the mediation officer will be present to oversee the mediation process. If serious concerns about any party’s behavior do materialize, the mediation should be terminated.

Random Rotation

Associations must mutually agree to select a mediation officer. If appropriate, subject matter expertise (e.g., advocacy territorial jurisdiction policy expertise) may also be a factor in mediation officer assignment. Associations may search NAR’s Professional Standards Training and Mediation Resources Database to find mediation officers to handle disputes. Please note the database is a self-populating repository of possible mediation officers. Mediators may also be selected from other organizations, as well.

Mutual Request

If both parties request a specific mediation officer, that individual, if available, should be assigned to the case.

Objections to a Proposed Mediator

If either party objects to the assignment of a particular mediation officer and attempts to resolve these concerns are unsuccessful, efforts should be made to assign the matter to a different mediation officer.

Inform Parties about the Process (Letter)

Each party should receive a letter explaining the mediation process and discussing logistical issues at least 10 days prior to the scheduled session. The Agreement to Mediate should be included with the letter.

Mediate Pre-Mediation Concerns (Call)

At times, parties may have a question or concern not addressed by the pre-mediation letter or call. In those instances, either the mediation officer or the staff responsible for coordinating the mediation should address the issue in a pre-mediation conference call.

Attorneys

Parties do not need to be represented by attorneys in mediation because the process is non-adversarial and does not involve findings of fact or law. If one party intends to have an attorney present, all other parties to the mediation should be notified in advance of the session.

If a party appears at the mediation with legal counsel and has not notified the other side, the unrepresented party has the option of rescheduling the mediation to a future date when their own counsel may be present.

Witnesses

Since the mediation is not a fact-finding conference, witnesses are rarely helpful or necessary. In rare circumstances, a witness may be able to clarify a misunderstanding and should be invited to attend all or part of the mediation session.

Documentation

The parties do not need to prepare exhibits or provide extensive documentation in a mediation. If a document would clarify an issue, it may be used at the mediation. Parties should be reminded however that the mediation is not a fact-finding conference and the focus shall be on settlement of the dispute.

Voluntariness

The parties should be informed that participation is voluntary and that they retain control over the substantive outcome of the mediation session.

Confidentiality

The mediation process is confidential. (See the policy on confidentiality, Item 6 of this model.)

Scheduling

The mediation date and time are typically scheduled at the convenience of the parties within 30 days of the request for mediation.

Mediation Officers’ Fees

There may be a mediation fee for association-to-association disputes. Associations must defer to the selected mediator and inquire about such fees.

Cancellations/Rescheduling

A mediation may be rescheduled provided all parties and the mediation officer agree. (See the exception under the policy regarding attorneys, Item 5 of this model.)

If a party fails to appear at a scheduled mediation, the mediation shall not be rescheduled, absent the consent of all parties and the mediation officer or extenuating circumstances.

Multiple Sessions

All parties and the mediation officer should attempt to resolve the dispute in a single session.

Further sessions shall be scheduled only if all parties and the mediation officer agree that it is appropriate.

The mediation officer may, at his/her discretion, follow up with a telephone call.

Mediation Evaluations

The parties, as well as the mediation officer, should be encouraged/required to complete quality control surveys to give the associations useful feedback on the mediation program.

The entire mediation process and all statements, communications, discussions and documents exchanged or generated in connection with any mediation shall be confidential. Evidence or information generated, submitted or exchanged in the course of a mediation may be used in an arbitration only to the extent that it was obtained independent of the mediation process.

Neither the parties nor the mediation officer shall/are required to report potential ethical violations discovered as a result of participation in the mediation process.

The mediation officer shall not be called upon to testify in subsequent proceedings.

The mediation officer shall destroy any notes/documentation associated with the mediation 30 days following the end of the mediation process.

Role of the Mediation Officer

The mediation officer’s role is to facilitate communication, enhance the parties’ ability to satisfy their own and each other’s needs, and help the parties understand the alternatives to settlement.

Mediation officers are encouraged to use a facilitative/problem-solving approach that respects the concept of party self-determination.

Mediation officers may not impose a solution upon parties. Mediation officers may, with the consent of the parties, offer settlement proposals or evaluations of likely outcomes at arbitration where appropriate.

Obligations of Mediation Officers

Report conflicts of interest.

A person shall automatically be disqualified as a mediation officer in any case in which the person is:

• related by blood or marriage to either complainant or respondent
• an employer, partner, employee, or in any way associated in business with either party

*Note: Mediators observe confidentiality and complete paperwork in a timely manner.

Arrange Seating

Typically, the mediation officer sits at the head/center of the table and parties are seated on either side of the mediation officer. Everyone should be able to see and hear everyone else. Seating arrangements should convey the mediation officer’s impartiality as well as his/her control over the process.

Mediation Officer Makes Opening Statement/Asks Questions

The mediation officer explains the mediation process, including the topics of:

• voluntariness (if applicable)
• neutrality
• confidentiality
• mediation officer’s role
• parties’ role
• caucuses
• mediation agreement (all present sign)

Parties Make Statements/Ask Questions

Each party shall have an opportunity to explain its perspective of the dispute.

Identify Issues

All parties and the mediation officer shall identify the issues to be addressed in the mediation.

Cross-talk

The parties may respond to each other and explain/explore information, needs, feelings and ideas.

Caucus (Private Meetings)

The mediation officer may meet privately with parties to discuss feelings, information, and options.

Build an Agreement

The parties, with the mediation officer’s assistance, explore and refine workable solutions.

Close

If the parties resolve the dispute, they shall complete and sign the Settlement Form before leaving the mediation session.

If the mediation does not result in a settlement, the parties shall sign the No Settlement Form to be submitted to the association. The parties should be praised for their efforts and encouraged to revisit settlement in the future. The mediation officer should also explain the next steps to the parties.

All mediated agreements should be reduced to written form before terminating the mediation session. A Settlement Form with space to describe the specifics of the parties’ agreement is provided.

The written agreement should:

• be written in language approved by all parties
• include specifics (who, what, when, how much)
• be written in simple, clear, and familiar language
• focus on positive action (avoid blame and reasons)

Conflicts of Interest

A mediation officer shall not mediate if he or she is not impartial towards the parties or dispute in an assigned claim.

A mediation officer shall disclose any real or potential conflicts of interest (see the policy on conflicts of interest, Item 7b of this model) to all parties.

If any party objects to the mediation officer continuing, the mediation shall be postponed and another mediation officer shall be assigned.

Weapons

Weapons, including guns and knives, may not be brought into a mediation by any participant even if carrying such weapons is permissible under the law.

Report Harm

In instances where, in the opinion of the mediation officer, there is an unacceptable risk posed to the safety of any participant, the mediation will be recessed so the mediation officer may consult with staff, board or association elected leadership, or board counsel to take steps to ensure the safety of all participants in the mediation or dispute. The board of directors may, at their discretion, consult with and share necessary information with appropriate law enforcement or other government agencies.

The mediation officer shall advise the parties regarding this limitation to confidentiality in the opening statement.

Bad Faith

There is a presumption of good faith at mediation unless a party demonstrates otherwise.

The mediation officer shall terminate the mediation if either party acts in bad faith, including:

• falsifying/withholding information central to the mediation
• using the mediation process merely to gain an advantage in further proceedings

Bad faith does not include failing to reach agreement or to compromise further than a party believes appropriate.